A BC Supreme Court case ruled against Chilliwack homeowners who wanted to opt out of the compostable collection program because they already compost and feed food scraps to animals. (Paul Henderson/ The Progress)

You can’t opt out of this city’s green bin program, judge rules

Just because you don’t want to use the City of Chilliwack’s green bin, doesn’t mean you don’t have to pay for it.

That’s the lesson a Chilliwack homeowner learned after a bid to opt out of the curbside compostables collection program was rejected by the BC Supreme Court.

Carol Ann Eccles and Wolfgang Lambrecht sued the City of Chilliwack arguing that solid waste management bylaw should be declared invalid as it prohibits them from feeding food scraps to their animals and composting on their own property.

The two live on a farm property on Prairie Central Road, and they say they make good use of compostable waste engaging in “responsible land stewardship and good farming practices,” Justice Len Marchand wrote in the Nov. 1 decision.

The city’s solid waste management bylaw No. 4330 came into effect May 1, 2017, adding the compostable collection to the garbage and recycling service already provided. The only exemptions in the bylaw pertain to inadequate access to a property or if a building has been rendered uninhabitable.

In the lawsuit filed in Eccles’ name, she argued that Bylaw 4330 “prohibits her from feeding food scraps to her animals and composting on her property.”

She argued further that this prohibition violates the Community Charter regarding land use, it conflicts with various pieces of provincial legislation that do not permit local governments to interfere with farming practices, and it “amounts to an expropriation of chattels.”

The argument goes that because the city requires the separation of recycling and compostables from garbage, the city forces homeowners and occupiers to use the system. But Section 50 of the bylaw explains the procedures for collection to be followed for waste that an owner or occupier “chooses to have collected.”

The couple did not want to pay for the program so they never selected a bin size, therefore the standard 120-litre bin was delivered. They are charged $19.07 per month for the service.

And while Justice Marchand did say Bylaw 4330 is “not perfectly drafted,” he did say that the city’s intention is clear in the bylaw, and it clearly does not prohibit backyard composting or feeding food scraps to animals.

“Further, on any reasonable reading of the Bylaw, it appears to be a fairly routine bylaw that establishes an important municipal service, one that amongst other things diverts recyclables and compostable waste from the City’s landfill,” Marchand wrote.

He concluded that just because the bylaw tells of the procedure how to put out compostable waste, that doesn’t mean people have to do it.

“On Ms. Eccles’ interpretation of the Bylaw, an owner or occupier could not use a recyclable jar for canning purposes or perhaps as a vase,” Marchand wrote. “Such an interpretation cannot be correct.”

It was also determined that if opting out were possible, many people might do it and then compostables and recycling could end up in the landfill.

“If the City allowed opt outs, there would be a financial incentive for owners and occupiers to do so, increasing the risk of cross-contamination of solid waste.”

Lambrecht said they were disappointed in the final decision, in part considering the city’s own lawyer agreed the bylaw was poorly written.

“The decision to sue the city was more based on principle as on many occasions the city and their contractors ‘bullied’ us and did not collect the curbside garbage or recyclables,” Lambrecht said via email, adding that the city referred them to Emterra instead of dealing with the matter directly at city hall.

And while it’s cost him $8,000 in legal fees so far, he is still thinking of the principle of the matter and is considering an appeal.

“Still thinking about my options,” Lambrecht said. “In the meantime, we no longer use any curbside services but still have to pay for them.”

The city is now ordered to make submission to the court on who should pay costs by Nov. 23. Eccles is to provide her submissions by Dec. 7, after which the city must reply by Dec. 14.